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Monday, November 16, 2015

Seated
left to right: Citizen Ken Jakes, Sumner Schools attorney Jim Fuqua, school communications official Jeremy Johnson and attorney Todd Presnell listen to the judge’s ruling that the school district violated the Tennessee Public Records Act.

by Deborah Fisher, Reposted from Tennessee Coalition for Open Government, GALLATIN — Nearly 20 months after citizen Ken Jakes
requested to see the Sumner County Schools public records policy, Sumner
County Judge Dee Gay ruled today that the school district violated
Tennessee Public Records law by withholding it. He ordered the district
to stop its practices and adopt a new policy for dealing with public
records requests.

The school’s attorney asked for a 30-day stay on the judge’s order,
which Gay granted, while the school district considers whether it will
appeal the judge’s decision.

The order was a win for Jakes, a frequent requester of public
records. Jakes filed the suit April 9, 2014, after the school district
told him they would not accept his records request which he emailed on
March 21, 2014, and followed up with a phone message. The school
district contended it could reject the request because it had a local
policy that all records requests must be made in person or in writing
and mailed through the U.S. Postal Service.

Sumner Schools has spent thousands of dollars defending its policy. Through February 2015, it spent nearly $83,000 for an outside law firm on the case. That doesn’t include the nine most recent months of work, including during the trial in July. The Gallatin News Examiner requested
to see how much the case had cost the district to date, but the school
district said it has not received any additional bills since February.
It declined to explain why.

Jakes said he has spent about $10,000 of his own money to sue the
district, maintaining all along that the school district was violating
the Tennessee Public Records Act and intentionally making it difficult
for citizens to get public records.

Judge Gay in his ruling on Friday sided with Jakes’ arguments, saying
the law made it clear that governmental entities could not put form
over substance in trying to regulate how a person makes a public records
request.

“From the TPRA (Tennessee Public Records Act) and the BPG (Best
Practices Guidelines on the Office of Open Records Counsel’s website),
it is very clear to this Court that in the application of the TPRA that
openness and the accessibility of non-exempt records are favored. It is
also very clear that the law has placed no restriction on the form or
the format of a request for inspection of public records other than: (1)
a request for inspection or viewing cannot be required to be initiated
by a written request; (2) any request for inspection of a public record
shall be sufficiently detailed to enable the record custodian to
identify the specific records.”

Judge
Dee Gay, a criminal court judge, took the case after the Sumner County Chancellor was recused because he had family members employed by the school district.

…”Both the email and the phone message were ‘sufficiently detailed to
enable the custodian to identify the specific records requested’ – a
request for the records policy for the Board of Education. Under the
TPRA, that is all that is required to make a request to inspect public
records,” Gay said.

While Gay took the school district to task for its policy — at one
point stating that, “We no longer live in a Pony Express world” — he
declined to rule that the school district’s denial was willful.If Gay had found the school district had willfully refused to provide
the public record, Jakes would have been eligible for an award of
attorneys’ fees. Instead, Gay noted that the school district’s attorney,
Jim Fuqua, “sought the advice of the Open Records Counsel concerning
the public records request for inspection in this case. The advice
requested was whether the Defendant should accept the request for
inspection of public records by email.”

…”The Court finds that there was no showing of an unwillingness to
produce a particular record, but rather involved a question or concern
of the proper procedure to follow by the Defendant in accepting a
request for inspection.”

In Gay’s order, he gave the school district until March 1, 2016
to bring its open records request for inspection policy into compliance
with the law.

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